Clarkslegal LLP - Solicitors in Reading and London

Public Procurement

Running a Public Tender

Procurement Strategy

Undertaking a procurement process in accordance with procurement regulations and directives can be a timely and costly exercise. We advise on the preparation of a procurement strategy in advance of commencing the procurement process, which will inform the process and enable the contracting authority to manage time and costs more efficiently and effectively.

We work closely with our clients to formalise their procurement strategies by considering all relevant factors including:

  • The services and/or works to be procured;
  • Reasons for undertaking the procurement process, for example, an existing contract is due to expire;
  • Timescales for concluding the procurement process.
  • Proposed duration of the contract.
  • Estimated competition/interest in the contract;
  • Appropriate procurement procedure to utilise.

We also advise on early engagement by market testing and assist our clients by producing all necessary documentation and ensure that the market testing process is legally compliant, transparent and does not distort competition.

Process Management

We work closely with our clients and their other external advisors, cultivating excellent working relationships and become integral members of the project or procurement teams. This helps us to fully understand our clients’ requirements, aims and objectives and to reflect these in the drafting of tender and contractual documentation.

We draft and/or advise on all tender documentation (including advertisements, contract notices, pre-qualification questionnaires, invitations to tender, invitations to participate in dialogue or competitive negotiation, invitations to submit final tenders, standstill letter/regulation 86 notices, contract award notices and VEAT notices).

Throughout the process, we ensure that the conduct of the procurement process and the content of the tender documentation are legally compliant.

Contracts and Contracting Structures

The form of contract utilised will depend on the services and/or works the contracting authority wishes to procure. We draft all agreements (having reference to the market standard, where these exist) to ensure that the contractual documentation accurately reflects the contracting authority’s needs objectives and risk allocation.

We work with clients and third party organisations (such as, the Chartered Institute of Wastes Management (CIWM) and the Welsh Government) to prepare standard form contracts for repeated use by organisations in their future procurement processes (such as the CIWM standard form contract for the procurement of a waste management contract, which is now utilised by numerous local authorities throughout England and Wales).

We continue to support our clients post contract completion in terms of compliance with and reliance on contractual terms and conditions including performance/default and change in law provisions. We also advise on whether proposed variations to the contract are permitted by the regulations, or whether there is a risk of a new procurement process being required.

Governance and Joint Ventures

Contracting authorities often work together to procure goods, works or services. We advise clients on the variety of different structures and vehicles which can be utilised for effective joint working, and then put together the relevant documentation to effect the chosen structure. We are experts in memorandum of understandings, inter authority agreements, collaboration agreements, setting up companies (and performing all associated company secretarial work) and creating (and drafting the constitution for) joint committees populated by collaborating local authorities.

We can also advise on the creation of a joint venture company for the contracting authority and the private sector partner to utilise to facilitate the performance of the procured contract.

Risk Management

We work closely with our clients to ensure the associated risks of any procurement are identified at the earliest stage, and properly managed. The majority of our team members have contentious experience and they are therefore well placed to manage risks and advise and draft to minimise or avoid such risks.

Risks associated with the procurement process should be kept under regular review and be proactively managed by the contracting authority throughout the process until contract award, and we can assist in that.

Risks associated with the commercial terms also need to be identified and allocated to a specific party. We prepare risk matrices for clients of the headline risks associated with a contract and facilitate the client’s discussions with bidders as to the most cost effective allocation of risk. A risk free contract for a contracting authority will rarely be affordable – or even available in the market. The contracting authority will be able to secure a more competitive price where a risk is managed by the appropriate party and we are experienced at advising our clients in this regard.

Information Control

Contracting authorities are generally statute bound to comply with the Freedom of Information Act 2000 (as amended) and the Environmental Information Regulations 2004. The tender documentation and the awarded contract should therefore include appropriate information and obligations on bidders and the contractor to assist the contracting authority in complying with its statutory obligations. Any contractual confidentiality obligations placed on a contracting authority will be subject to the requirements of these Acts.

Our team has extensive experience of advising on information laws, with a team member having been appointed as the Freedom of Information Officer for a local authority.